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When severely battered women Sharwline Nicholson, Ekaete Udoh and Sharlene Tillett went to court on behalf of themselves and their children, they began a legal journey that would eventually become a class action lawsuit, travel through the federal and state court systems of New York and have reverberations around the country. (See account in Gotham Gazette's children's topic page December update) The litigation, now in its fourth year, involves the rights of victims of domestic violence whose children were taken from their custody by the City of New York's Administration for Children's Services (ACS) even though the mothers had not been found unfit, neglectful or to have engaged in domestic violence. They were simply victims of assault by domestic partners. The practice and policy of removing children who had not themselves been assaulted, and who had not been harmed by their victimized parent meant some battered women might resist calling the police for protection for fear it would lead to the removal of their children.

Following extensive hearings, federal judge Jack Weinstein of the United States District Court for the Eastern District of New York, found that "the evidence reveals widespread and unnecessary cruelty by agencies of the City of New York toward mothers abused by their consorts, through forced unnecessary separation of the mothers from their children on the excuse that this sundering is necessary to protect the children."

Referring to the legal maze in which the mothers are thrown as Kafkaesque, Judge Weinstein detailed the ironies and inequities of blaming the victim who is usually powerless to control the violence in the home. "The limiting factor on what a battered mother does to protect herself or her children from the batterer is usually a lack of viable options, not a lack of desire," the judge wrote, referring to institutional protection and support for victims of domestic violence. As advocates for battered women have argued for more than thirty years, the judge said, "Accusing battered mothers of neglect aggravates the problem because it blames the mother for failing to control a situation which is defined by the batterer's efforts to deprive her of control. ...It's an ill-conceived way to think about this issue of neglect and it further victimizes women who are victims of domestic violence."

The decision in the case, which is now known as Nicholson v Scoppetta, forbids the Administration for Children's Services and various other defendants from removing children who had not been physically harmed, threatened or neglected by the mothers who were victims of assault.. While the city took the position that removal was consistent with protecting the children and that failing to prevent their witnessing violence, was itself a form of neglect, Judge Weinstein found that the Constitutional rights of the mothers and the children had been violated . The court recognized the parental interest in the "care, custody and control of their children as perhaps the oldest fundamental liberty interest". Unless the parent is unfit to care for the child, the judge wrote, "there is a constitutionally protected interest in preserving family integrity and a right not to be separated by the government." Judge Weinstein took particular exception to the failure to focus on removal of the batterer/assailant from the home, provide alternatives for the mother and children, and recognize removal of the children as the most extreme and undesirable resolution to domestic violence, one which would, in his view, and the experts he relied upon, have greater negative impact on the children than would the witnessing of the original violence. He concluded that removing children under the circumstances of these cases should be the very last resort.

In some cases Family Court orders of removal were obtained; in others ACS proceeded without court intervention. Both situations involve policy decisions and interpretations of the Family Court Act and what constitutes neglect, whether removal is available where there is no "imminent risk or imminent danger to the child's life or health, and how these factors are balanced with the "best interests of the child."

On defendants' appeal to The United States Court of Appeals for the 2d Circuit, the federal appeals court permitted the injunction to stand but did not reach a conclusion. Rather, in late 2003, the circuit court identified several open legal questions, and referred them to the New York State Court of Appeals for both constitutional reasons and in deference to the state court's expertise in family law. The questions yet to be answered are, under state law:

â€˘ Is the definition of "neglected child" meant to include instances in which the sole allegation of neglect is that the parent or guardian allows the child to witness domestic abuse against the caretaker? (It has previously been determined that the batterer can be charged with endangering the welfare of a child by assaulting the victimized parent.)

â€˘ Can the injury or possible injury, if any, that results to a child who has witnessed domestic abuse against a parent or caretaker constitute danger or risk to the child's life or health as defined in the Family Court Act?

â€˘ Does the fact that the child witnessed such abuse suffice to demonstrate that removal is necessary in the child's best interests, or must the child protective agency offer additional particularized evidence to justify removal? The key question appears to be whether the emotional trauma of witnessing violence is the type of danger that is sufficient to warrant removal from the non battering spouse.

It is not known when the New York Court of Appeals will address the questions. However, according to Carolyn Kubitschek, counsel to the Nicholson plaintiffs, the city is complying with the injunction.

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